The motivation for writing up this paper was generated from the fact that in spite of being a well-functioning welfare state, several serious reactions from the ECtHR have shown that Norway has violated a central human right, article 8 on the right to family life. As we have seen, the Child Welfare Act is well grounded in human rights and the corresponding national legislation. The challenges are rather related to the practice under the Act. Although many important steps are being taken, the overall development of evidence-based measures and policy to balance parents’ and children’s rights comes across as fragmented. Throughout our evaluation and discussion of the three different concerns, we conceptualize three areas that we believe explain some of the mechanisms behind the question raised of how well the Norwegian system is working in terms of the ECtHR and the CRC.
Balancing the Rights of the Child with those of the Parents
At the core of the ECtHR decisions is the goal of reunification of the child with its biological parents which is, according to the Court, given up too soon and not explicitly taken into account in Norwegian decision-making. To pursue that goal, the authorities have to establish easy and regular contact between parents and their child when a child is placed in alternative care, contrary to the dominant Norwegian practice, and contrary to a certain application of attachment theory.
Looking at this from a children’s perspective, the reunification goal serves the right of the child to family life with his or her parents. However, children also have other rights. The Norwegian child protection cases have all been brought by the parents and primarily concern their right to family life (e.g. Jansen v. Norway, 2018). For that reason, the child’s other rights – be it to protection from their biological parents or to family life with their foster family – do not appear in the ECtHR judgments. Instead, they may be alluded to in the proportionality assessment where the child’s best interests are to be paramount. Importantly, in Strand Lobben (2019), the Court states:
‘[I]t is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development … .’
Here the Court acknowledges the interest of the child in a sound development and in avoiding harmful behaviour from the parents, but does not recognize these interests as rights, as they are under the CRC. The same applies to the child’s interest in stability in the case:
‘However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited ….’
In other types of cases, the Court has recognized the right to family life based not only on biological or legal elements but also on social ones. Thus, the relationship between a foster child and its foster parents may qualify as family life, depending on the facts. The perspective that the child may not only have an interest in not having his or her de facto family life changed again, but also a right in that regard is not mentioned by the Court. The rights approach might serve to strengthen the argument of the child’s interest by providing it with a stronger legal basis.
For procedural reasons the child does not appear in the ECtHR child protection cases as a subject of rights, but rather as the object that the case is about. It may be true that the Norwegian decisions have not made the parents’ rights visible but rather considered them implicitly as an underlying factor (HR-2020-661-S, n.d.). However, it is important that the child is recognized as a rights holder as well, a focus which has been strengthened in Norway over the past 15–20 years. If the rights of the child were recognized in these cases, they might be considered differently.
One of the rights of the child is to have his/her best interests taken into account as a primary consideration. Although at the general level the ECtHR acknowledges that the child’s best interest should be paramount and in cases like these come before all other consideration, this is not evident from the Court’s application of its own principles to the facts of the recent cases, where the parents’ right to family life is given priority. Crucially, the best interests principle requires an individual assessment in each case. With regard to contact in public care, both the Norwegian practice of very limited contact and the ECtHR’s requirement of frequent contact appear to be too standardized. Rather, contact should be decided based on an individual assessment.
Another essential right, which is key to assessing the child’s best interests, is the child’s own views (CRC, articles 12 and 14). In Norway, great attention is paid to the child’s right to be heard and a child’s spokesperson is regularly used in court proceedings. There are great variations in children’s views on how often they would like to have contact with their parents, for how long, and where it should take place (Forandringsfabrikken, 2021). The child’s views are absent from the ECtHR judgements. However, in the Court’s concession that the contact regime should not expose the child to ‘undue hardship’ there is an opening for including the child’s views and making an individual assessment, although the threshold of ‘undue’ should not be high.
In exercising their discretion in every single case, the child welfare authorities have to perform the difficult exercise of balancing the two sets of rights. Even if there may have been a shift in the dominant position of ECtHR judges towards a more family-oriented approach (Jacobsen, 2020), we remain bound by the CRC and have to find a way to reconcile the two. In this exercise, psychologist experts are frequently involved and have the important task of examining and explaining the child’s needs and parental capabilities, why continuous education and critical review of scientific materials ought to be their central tasks. However, it is the responsibility of the decision-making body to ensure that the rights of the child and those of the parents are balanced and that this appears explicitly from the decisions. If in the individual case it is not possible to balance the two, the child’s right to protection, care and a sound development should be prioritized.
The Psychological Field’s Influence on the Interpretation of What Constitutes the Best Interest of the Child
From our review, it seems likely that the professional development of Norwegian psychologists largely has influenced the CPS practice and dragged the more recent development towards a trauma and attachment perspective, which gradually has been reinforced by official evaluations and documents that clearly recommended a movement towards a psychological approach. This implies that the biological parents’ position in relation to the child’s rights has been weakened in terms of their rights to family life and integrity. Implicit in the attachment and sensitive care thinking – that also influences psychologist experts’ evaluations for the court – the child would need to establish a new attachment base and tune down the contact and relationship with biological parents, and in some cases also to avoid parental re-traumatization. Visits may therefore be seen as a disturbance in the new attachment formation with the foster parents that needs its full attention. Thus, placement outside the biological home often results in restrictive visiting orders, which in turn diminishes the possibilities for the goal of reunification.
A reasonable question concerns whether these perspectives on children’s needs in terms of a healthy development, that is, attachment and traumatology mixed into sensitive care and parents’ ability to mentalize, may result in a too narrow perspective on the child’s best interest. What is seen as measures to achieve expected (typical) developmental trajectories, might put a demand on parents’ capabilities far beyond what could be defined as within a normal range of parenting, as well as beyond a reasonable prediction of future parental behaviour based on current performance.
Supporting this suspicion, a recent review of the concept of parents’ mentalizing in Norwegian child protective work, raises critical arguments regarding the service’s use of it to form predictions of the individual child’s future psychological health (Lauritzen et al., 2019). The author refers to conclusions of psychologist experts – hired by the service to provide evidence in maltreatment cases – about the associations between lower ability to mentalize and unsecure attachment to risk of maladaptation in short and longer run. Both mentalizing processes and attachment approaches are encumbered with several assumptions that have not been fully empirically tested (cf. Forslund et al., 2021), which makes the interpretative power from these methods less reliable. Predictions from psychological theories, to correctly forecast behaviours that have not yet been observed, are difficult to make on an individual basis (Yarkoni & Westfall, 2017). Additionally for the worse, it is well-known that there exists a replication crisis in psychology that should make every single study without a replication nothing more than one observation (Bakker et al., 2012).
Lastly, the child’s own views should be of particular focus in experts’ evaluations of care orders, visits and returns, why interviews with the child should be expected. However, a novel study shows that out of 201 cases, only 12% of the mandates to psychologist experts in these cases included an explicit demand to interview the child about these themes (Melinder et al., 2021). Thus, it is up to the individual psychologist to perform, or not, such interviews as long as it is not a mandatory request in the experts’ mandates. We urge that expert psychologists regularly are encouraged to employ models from a variety of approaches to reduce confirmation bias, and to conduct child interviews based on evidence-best practice protocols through the mandates designed for their service.
Several Missing Links in the CPS
Norwegian policy makers have recently taken important steps to overcome the identified difficulties concerning lack of collaboration, coordination and competency within the CPS. In 2017, a CPS reform that was driven by the need to enhance interdisciplinary collaboration and to strengthen the incentives to implement preventive measures and early interventions strategies, passed through Parliament. The reform underscores the importance of local authority management and leadership that child protection is viewed in relation to other provision for children and families, and that the local authority’s management takes clear ownership of their child protection services (Bufdir, 2020a). The CPS reform goes along with the already ongoing work on implementing a new CWA, a new competence strategy for the workforce in the CPS, enhancing cooperation between the local CPS and the local health services, and improving digital solutions to strengthen the quality and efficiency of the CPS (Ministry of Children and families, 2020).
When the child welfare service obtains expert reports, these can become a central part of the decision-making basis. Consequently, it is important that contributions from psychologist experts hold a high professional standard. In order to strengthen the quality of psychologist expert work, and to raise the popular trust in the decision-making bodies’ conclusions in CPS cases, Norwegian policy makers have proposed regulations to strengthen the formal framework for psychologist expert work. By implementing educational requirements for experts, requirements for their mandates and reports – greater predictability and uniform practice are to be ensured (Ministry of Children and Families, 2020c).
An important framework for expert work in child welfare cases is the mandate given by the engaging party (e.g the local authority CPS, the County Board and the Court). The mandate of the expert lays out, among other things, the premise of the expert’s work process, assessments and advice. In addition, the mandate enables readers of an expert report to assess the work of the expert. Analyses of 200 mandates given to psychologist experts in CPS cases, show that there is a very large variation in the design of the mandates and topics the experts are meant to assess (Melinder et al., 2021). In 2020, the Ministry of Children and Family Affairs proposed to introduce minimum requirements for the mandates, including a precise indication of what the expert should consider (Ministry of Children and Family Affairs, 2020c). This notion may call for increasingly standardized mandates that better capture the relevant issues of the case. Standardized mandates may also simplify the work of the Children’s Expert Commission, which assess the expert report before it can be used for decisions in the CPS, the county board and the court. These proposed legislative steps will make it easier to ensure systematic evaluations of the experts’ work, and should be accompanied with systematic research to further develop procedures and evaluative measures.
For the preventive part of the CPS, the PMTO and MST (recently also MST-CAN, for Abuse and Neglected Children) approaches have been employed to some degree (Tollefsen & Christensen, 2013; Thuve et al., 2021). Interestingly and coinciding with our discussion of the polarized psychological milieus above, these approaches have mostly been employed in areas where the staff are less involved with sensitive care thinking, and with older children and youths in institutions.
Children receiving measures from the CPS often have complex needs, which require interdisciplinary efforts from different services. Hence, cooperation and coordination within and between local authorities and specialized health services is crucial. In 2014, the Directorate of Health and the Directorate Children, Youth and Families established a Cooperation Forum for the CPS and Mental Health services, followed up by an official circular in 2015 giving guidelines on the collaboration between the Child and Adolescents Mental Health Service and CPS and the coordination of their respective services. However, a survey of this circular’s impact in practice, showed that many practitioners were not aware of or familiar with the existence of the circular, implying further implementation work (Lauritzen et al., 2017).
In 2017, the Directorate for Health and the Directorate for Children, Youth and Family Affairs (Bufdir) issued an official report containing several recommendations for the future organization of services and legislative changes in the work on healthcare for children placed in alternative care. The establishment of primary care teams with competency on children with complex needs is recommended. These teams should have a coordinating function between local authority levels of services and ambulatory teams in mental health services responsible for adolescents in institutional care. Furthermore, the report calls for commitment to cooperation agreements between CPS and mental health services (Directorate for health/BufDir, , 2017, but see Lehman & Kayed, 2018).
To overcome collaboration challenges and fragmented support, the Norwegian government in 2020 issued proposals for changes in the law aimed at strengthening coordination between services for vulnerable individuals. One proposal is to introduce a legal requirement for collaboration between services covered by the various sectoral statutes, including the CWA (Ministry of Education and Research, 2020). During the consultation process, several respondents have objected that the proposals are adequate but complicated. A main concern is that it will challenge the expertise of those required to understand and apply the regulations as very few of those working with and for children in the various services have legal expertise.
Our identification of several missing links in the CPS suggests there are common, and perhaps intractable challenges, in policy and systems design, workforce recruitment and development, CPS management and multidisciplinary teamwork. It also suggests there are persistent challenges translating theory, law and policy into practice both within the CPS and in connection with multidisciplinary collaboration with other welfare providers. There is an urgent need to unify the work and implement knowledge-based and systematic measures. This notion was recently confirmed in a comprehensive national strategy on competence enhancement for vulnerable children and adolescents (The Research Council of Norway, 2021). The main conclusion of the strategy group is that Norwegian policy development is dependent on stronger alliances between research, education and innovative practice. The strategy group makes several recommendations to achieve this goal – among them:
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A coordinated and long-term research and innovation program.
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Research-based and practice-oriented education, further education and continuing education for employees and managers in the field of practice.
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Leadership for a knowledge-based and change-oriented practice.
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A review of the role of knowledge and competence centres.